Facing a second request can be painful, kind of like searching for a needle in a haystack exacerbated by a strict deadline looming above it all. And, as volumes of data continue to grow and types of data become increasingly complex, these matters are often inefficient and costly, while getting to the key documents (needles) quickly can feel like an insurmountable challenge.
In the 2019 Antitrust Leadership Panel, I gathered together a group of top antitrust experts to discuss the grueling challenges, the role of technology and emerging trends, and a few concrete recommendations for progress to make second requests more efficient and less costly. The video series of the panel was very well received and I have since been asked by several viewers, “So, Bill, how do I apply these ideas to my current antitrust practice or process? How do I find the needles in the haystack?”
In this blog, I will answer just that and distill the key takeaways from the panel to share with your team so that you can be better equipped to tackle a second request and find the critical needle in that giant, ever-evolving haystack of data.
Lesson 1: Technology is a must, but so is trust.
Our expert panelists all agreed that although the usage of technology can be challenging to negotiate with the DOJ and the FTC, its application is paramount in getting to key documents quickly. With that in mind, the first phase in preparing for your next second request and conquering the haystack of data is to leverage technology. Here are some simple steps to get you started:
- It’s critical to understand what technology is out there and what it can do (i.e. AI, predictive coding, email threading, deduplication, etc.). Ensure you and your team stay on top of what each of these tools does and how you can leverage them in second requests. Understanding and educating yourself on all aspects of the technology is key to increasing the government’s trust and acceptance of new tools they may not be familiar with…more on that in the next step.
- Once you understand what technology options are available and have the best probability for success in your specific case, select the tool or tools that make the most sense for your team and secure them (i.e. by leveraging your vendor’s tools or procuring them in house). Work with your vendor or in-house team to develop sound evidence that will persuade the DOJ and FTC to accept technology so that it can be more broadly used and leveraged within your matters. This will allow you to save significant time and money and, who knows, if we all did it the DOJ and FTC may be more likely to accept it.
Lesson 2: Proportionality can save you time and money, leverage it.
The panel also discussed that although the DOJ and FTC sometimes don’t seem to make proportionality a priority in second requests and may intentionally request broader swaths of data to buy more time outside of the strict statutory guidelines, it’s clear that proportionality should be a primary focus for both parties to limit the burdensome amount of data that must be collected and reviewed. Consider this next set of steps as another way to potentially save time and money when trying to dig through the haystack of second request data.
- When faced with a second request, first discuss amongst your team what arguments for proportionality can be made.
- Ensure your arguments for proportionality are based on compelling evidence and bring them to the DOJ and FTC at the onset of the second request.
- If your argument is not accepted on one matter, work with your vendor to focus on building more evidence to get the DOJ and FTC on the side of proportionality in your next matter.
Lesson 3: Privilege review tools can be a privilege in the long run.
According to the panelists, having better and more user-friendly privilege review tools would result in a significantly improved second request process for everyone involved. So, how do you take concrete action on that? Here are a few additional steps to improve the privilege review process and break down one of the most burdensome parts of tackling the haystack.
- Reach out to your vendor and ask what tools and solutions they have around privilege review.
- Test out their privilege tools on your next matter and provide feedback for continuous process improvement.
- Work with your vendor to develop customized privilege tools using advanced analytics to find privileged documents more quickly and easily.
- When leveraging privilege tools, be sure to track solid metrics and develop new evidence to showcase to the DOJ and FTC why they can trust the advanced technology.
Share these takeaways within your team and apply the steps that make sense for your practice so that the next time you’re faced with a daunting second request and a seemingly insurmountable amount of data, you’ll be well positioned to tackle the challenge and find the right needles in the haystack from the onset.
Want to discuss this topic more? Feel free to reach out to me at BMariano@lighthouseglobal.com.
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